No absolute requirement to specify a school or institution in Education and Healthcare plans


Re: Derbyshire County Council v EM DM [2019] UKUT 240 (AAC)

This case involved the special educational needs provision for two sisters who have significant disabling conditions. The First Tier Tribunal had decided that as it had made provision for ‘education otherwise than in school’ under section F of the sisters’ education and healthcare plans (EHC plan), no school or other institution could be named in section 1 of the EHC Plans. The question for appeal was whether the tribunal was entitled as a matter of law.

The Upper Tribunal held that there is no absolute requirement that all EHC Plans must specify a school or other institution (or type of either) in Section I of an EHC Plan. The Upper Tribunal found that if the local authority thinks that no school or other institution (or type of either) would be appropriate for the child, the ‘naming’ duty under these sections and thus in section I of the EHC Plan cannot as a matter of law arise (contrary to what the UT had said in M&M v West Sussex [2018] UKUT 347 (AAC)).

The Upper Tribunal held that the First Tier Tribunal had not made an error on a material point of law and dismissed the local authority’s appeal.

David Wolfe QC was involved in this case.